Negligence and Contributory Negligence in Australian Law: Liability, Duty, Causation, and , Study notes of Calculus

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Table of Contents Exam Structure… (2) Negligence Parties  Death… (4)  Workers’ compensation… (5)  Vicarious liability… (7)  Non-delegable duty… (10) Duty of Care  Normal negligence… (11)  Unborn child… (13)  Pure mental harm & Consequential mental harm… (17)  Pure economic loss… (21)  Liability of statutory authorities… (24)  Omissions… (29) Breach of Duty… (31) Causation… (34) Remoteness… (39) Defences (Negligence)  S 5O… (41)  Contributory negligence… (42)  Voluntary assumption of risk… (45) Contribution among tortfeasors… (51) Motor accident compensation… (52) Intentional Torts Battery… (55) Assault… (56) False imprisonment… (57) Trespass to land… (59) Trespass to goods… (62) Conversion… (64) Detinue… (66) Defences (Intentional torts)  Self defence… (67)  Consent… (68)  Necessity… (70) Nuisance… (71) 70311 Exam Structure  Parties o Consider Relatives Compensation/Workers Comp and VL/NDD/Motors s 131  (1) Duty o For pure mental harm, refer to s 32 o Reasonably foreseeable plaintiff Chapman v Hearse o Recognised / novel duty??  If Novel duty – e.g. Pure economic loss, liability of statutory authorities  Use Incrementalism Sullivan v Moody  Salient features of CL Relevant cases (including s 42, 43A, etc. if statutory authorities)  (2) Breach o 5B(1)(a) – Risk was foreseeable (fanciful far-fetched) o 5B(1)(b) – Risk not insignificant o 5B(1)(c) – calculus of negligence in the position reasonable X  (3) Causation o 5D (1)(a) – Necessary condition ‘but for’ Strong v Woolworths  For failure to warn cases use 5D(3)  For exceptional cases 5D(2) o Breaking of chain of causation? ‘Novus Actus’  Is it nullified by the ‘very risk’ D created? March Stramere o 5D (1)(b) – purpose test to extend scope of liability to D Wallace & Kam  (4) Remoteness o Harm reasonably foreseeable? (fanciful far-fetched) Wagon Mound No 2 o Only type of damage is enough, liable to full extent of harm Hughes v Lord Advocate o Egg-shell skull principle - P liable for full extent of damage due to peculiarity of P Leech Brain  (5) Defences o Contributory Negligence  LRMA (1965) s 9/CLA s 5T (for death)/CLA s30(3) (pure mental harm)  5 R (a) 5B (b) 5D  LRMA (1965) s9 – apportion damages, just and reasonable o Volenti defence  Inherent risks s 5(I)  No duty to warn of obvious risks s 5(H)  Dangerous and recreational activities s 5(L)  Continue using CL principles if obvious risk or risk not covered by statute  (6) Concurrent tortfeasors o If pure economic and property damage use CLA for proportionate liability o If not above two categories, use LRMA (1944) s 5 to apportion liability, D sues other concurrent tortfeasors ‘Calculus of negligence’  Time of assessment o D’s conduct assessed from a prospective vantage point: Court must apply standard of care to D’s conduct having regard to D’s knowledge and responsibilities immediately before the P’s injury14 o However, prospective conduct can be used to held determine whether there was practicay way of avoiding risk prior to P being injured15 Civil Liability Act s 5B 2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): a) The probability that the harm would occur if care were not taken b) The likely seriousness of the harm c) The burden of taking precautions to avoid the risk of harm; and d) The social utility of the activity that creates the risk of harm  Probability harm would occur o Where injury is very sight, reasonable care may be taken by doing nothing to eliminate the risk16  E.g. of very slight, cricket ball travelled 90 meters out of stadium, only happened 6 times in 30 years  Likely seriousness of the harm o Where D could foresee that consequences of their actions would be particularly grave, liability in negligence may be more easily established17  E.g. the fact that a one eyed workman was likely to sustain more serious injury than his fellow women with two eyes should be taken into consideration  Burden of taking precautions o Where risk is easy to avert, it is more likely to find that D breached duty of care o Court can reject argument if P fails to prove that certain precautions were necessary and appropriate in the circumstances or would have avoided the risk of injury18 o D is note required to take expensive precautions where risk is low and an injury unlikely to occur19  Social utility of D’s activity o Necessity of emergency life saving measures has excused what would otherwise be a negligent and dangerous operation20 Defence – 5O Mention s 5O here, professional peer standard. Deal with in detail in defences 14 Adeels Palace Pty Ltd v Moubarak (2009) 15 Nelson v John Lysaght Pty Ltd (1973) 16 Bolton v Stone [1951] 17 Paris v Stepney Borough Council [1951] 18 Neill v NSW Fresh Food and Ice Pty Ltd (1963) 19 Romeo v Conservation Commission of Northern Territory (1998) 20 Watt v Hertfordshire County Council [1954] Contributory Negligence (Defence)  In common law, used to be a complete defence, now it is a partial defence Law Reform (Mischellaneous Provisions) Act 1965 (NSW) s 9 1) If a person (claimant) suffers damage as a result party of the claimant’s failure to take care (contributory negligence) o A claim in respect of damage is not defeated by reason of the contributory negligence of the claimant; and o The damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage  Civil Liability Act 2002 (NSW) s 5R sets out the standard of contributory negligence Civil Liability Act s 5R 1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered has been contributorily negligent in failing to take precautions against the risk of harm 2) For that purpose a. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and b. The matter is to be determined on the basis of what the person knew or ought to have known at the time  It is not necessary to establish P owes D or any other person a DoC in CN cases; rather the question of whether P has exposed themselves to an unreasonable risk of being injured through their own carelessness or negligence21 Breach  Refer to above section on breach  Civil Liability Act 2002 (NSW) s 5B o Calculus of negligence will be applied using the standard of a reasonable person in the position of P22 Imminent danger  Courts will not not plaintive negligent where negligence of D has placed plaintiff in the position of imminent personal danger23  An emergency will not always exempt P from CN, the reasonableness of the plaintiff’s conduct will be examined in the context of the vents that occurred. In an emergency, plaintiff is required to exercise the level of care and skill which the person of ordinary prudence might exhibit in an emergency24 21 Davies v Swan Motor Co (Swansea) Ltd [1949] 22 Civil Liability Act 2002 (NSW) s 5R(2)(a) 23 The Bywell Castle (1879) 24 Coris v Baker [1968] Causation  Refer back to above section on breach  Civil Liability Act 2002 (NSW) s 5D  It will have to be established that P’s CN comprises of a necessary condition of the occurrence of the harm in that it is appropriate for the scope of the P’s liability to extend to the harm caused Apportioning Damages  Once contributory negligence has been found, the court needs to them apportion damages Law Reform (Mischellaneous Provisions) Act 1965 (NSW) s 9 1) If a person (claimant) suffers damage as a result party of the claimant’s failure to take care (contributory negligence) o A claim in respect of damage is not defeated by reason of the contributory negligence of the claimant; and o The damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage ‘Just and equitable’  Court will need to consider the relative importance of acts of each party in causing the damage. Respective culpability is to be assessed on the basis of the degree by which their conduct departed from the standard of care of a reasonable person25 Possibility of complete defence  Court can reduce damages by reason of contributory negligence by 100% if the court thinks it is just and equitable to do so26 25 Pennington v Norris (1956) 26 Civil Liability Act 2002 (NSW) s 5S